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Provisions in the Budget can have serious implications for flow of foreign institutional investor funds in to India.
The change in stance with relation to Tax Residency Certificate (TRC) and providing for General Anti Avoidance Rule (GAAR) in the Income Tax Act may both impede the flow of money camouflaged as FII funds into the Indian market through tax havens.
Tax residency certificate
It is no secret that a large portion of FIIs investing in to India are domiciled in Mauritius. The double taxation avoidance agreement (DTAA) that India has signed with Mauritius enables tax on securities transaction to be taxed in the country where the company is resident. Since capital gains tax rate in Mauritius is zero, foreign investors buying or selling Indian stocks through the Mauritius route get away by paying no capital gains tax.
The TRC issued by Mauritian government forms the basis for judging if a company could avail itself of the benefits of DTAA with Mauritius. The criteria that Mauritian government applies for issuing these certificates are fairly lax, resulting many shell companies availing themselves benefits under this treaty.
The Budget lays down that “submission of Tax Residency Certificate is necessary but not sufficient for availing benefits under these treaties.” This could spell trouble for FII money coming in from tax havens as it gives the tax authorities the power to overlook the tax residency certificate and demand further proof of commercial substance.
Implementing General Anti-Avoidance Rule (GAAR) in this Budget can also impact some FIIs investing in India through tax havens. Tax authorities will now impose GAAR on arrangements that “lack commercial substance” or are carried out in a manner which is normally not employed for bonafide purpose. The budget document goes on to say that an arrangement will be deemed to lack commercial substance if it includes “round trip financing”.
While genuine foreign investors will not be impacted by the change in TRC or GAAR, the flow of illegitimate or black money in to stocks through such conduits will be seriously deterred if not stopped, with the threat of tax-men going after these entities.
> lokeshwarri_sk@thehindu.co.in
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